DONALD DOUGLAS BREIER, PETITIONER V. UNITED STATES OF AMERICA
No. 87-986
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question presented
Opionion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 6a-15a) is reported
at 813 F.2d 212.
JURISDICTION
The judgment of the court of appeals was entered on March 16, 1987.
A petition for rehearing was denied on September 16, 1987. On
November 9, 1987, Justice O'Connor granted an extension of time, until
December 15, 1987, for filing a petition for a writ of certiorari, and
the petition was filed on that date. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether convictions under 18 U.S.C. (1982 ed.) 922 for unlicensed
dealing in firearms should abate in light of the Firearms Owners'
Protection Act, Pub. L. No. 99-308, 100 Stat. 449.
STATEMENT
Following a jury trial in the United States District Court for the
Central District of California, petitioner was convicted on five
counts of unlicensed dealing in firearms, in violation of 18 U.S.C.
(1982 ed.) 922(a)(1). The district court sentenced petition to 45
days' imprisonment, five years' probation, and a $5,000 fine. The
court of appeals affirmed.
1. Petitioner is a gun collector. During the summer of 1984, he
began renting tables at gun shows, where he bought, sold, and traded
firearms. In April 1985, he was contacted by an agency of the Bureau
of Alcohol, Tobacco and Firearms (ATF). The agency told petitioner
that ATF had reason to believe he was trading in firearms on a regular
basis and warned him that a federal firearms license is required for
persons who regularly traffic in firearms. Petitioner assured the
agency that he was only a collector and that he was not regularly
trading in firearms. Over the next year and half, however, ATF agents
attended several gun shows in an undercover capacity and purchased
firearms from petitioner; petitioner realized a gross profit on those
sales, although he claimed to have suffered a net loss, because of
associated expenses, on his overall dealings. In February 1986, a
grand jury indicted petitioner on five counts of violating the Gun
Control Act of 1968, 18 U.S.C. (1982 ed.) 922(a)(1), which made it
unlawful "for any person, except a * * * licensed dealer, to engage in
the business of * * * dealing in firearms." Pet. App. 7a.
A jury trial commenced on April 1, 1986 (Pet App. 7a). At the
close of the evidence, the case was submitted to the jury with
instructions that the term "dealer" in 18 U.S.C. (1982 ed.) 922(a)(1)
meant "'any person engaged in the business of selling firearms * * *
at wholesale or retail,'" Pet. App. 9a n.1 (quoting 18 U.S.C. (1982
ed.) 921(a)(11)(A)), and that the phrase "engage(d) in the business of
dealing of firearms" in 18 U.S.C. (1982 ed.) 922(a)(1) meant that the
defendant "h(e)ld (himself) out as a source of firearms, or * * *
engage(d) in regular and repeated buyings and/or sellings of firearms,
as opposed to an isolated or occasional transaction," even if the
defendant did not sell firearms as his primary business or actually
realize a profit from his sales (Pet. App. 9a n.1). /1/ The jury
convicted petitioner on all five counts and, on May 11, 1986, the
court imposed sentence (Pet. App. 7a-8a).
2. On May 19, 1986, a few days after petitioner was sentenced,
Congress enacted the Firearms Owners' Protection Act (FOPA), Pub. L.
No. 99-308, 100 Stat. 449. The FOPA did not change the offense set
forth in 18 U.S.C. (1982 ed.) 922(a)(1) or the definition of "dealer"
set forth in 18 U.S.C. (1982 ed.) 921(a)(11)(A). Rather, it added a
new subsection 21(C) to 18 U.S.C. 921 and thereby redefined the phrase
"engaged in the business" to refer to a person who "deal(s) in
firearms as a regular course of trade or business with the principal
objective of livelihood and profit through the repetitive purchase and
resale of firearms" (Section 101(6), 100 Stat. 450). /2/ The FOPA
also added a new subsection 22 to 18 U.S.C. (1982 ed.) 921, which
defined the phrase "with the principal objective of livelihood and
profit" to mean that the intent was "predominantly one of obtaining
livelihood and pecuniary gain" (Section 101(6), 100 Stat. 450). /3/
And Section 110 of the statute provided that, with a few specific
exceptions, the provisions of the FOPA, including new subsections
21(C) and 22, would take effect 180 days after their enactment --
i.e., on November 15, 1986. 100 Stat. 460-461. /4/
3. On appeal, petitioner argued that recently enacted subsections
21(C) and 22 should be applied retroactively to his case and,
accordingly, that his convictions should be reversed (Pet. App. 7a).
The court of appeals rejected that argument and affirmed petitioner's
convictions (id. at 6a-15a).
The court began by noting (Pet. App. 10a) that subsections 21(C)
and 22 are not included among the list of provisions that the FOPA
expressly made retroactive. In spite of that omission, petitioner
argued that those provisions should be given retroactive application
so that they would apply to conduct that was governed by the prior
version of Section 921 at the time the conduct occurred. In making
that argument, the court of appeals observed, petitioner "faces the
formidable obstacle of the federal savings clause, 1 U.S.C. Section
109" (Pet. App. 10a). That statute provides that "(t)he repeal of any
statute shall not have the effect to release or extinguish any
penalty, forfeiture, or liability incurred under such statute, unless
the repealing Act shall so expressly provide, and such statute shall
be treated as still remaining in force for the purpose of sustaining
any proper action or prosecution for the enforcement of such penalty,
forfeiture, or liability." The court determined that Congress enacted
the saving clause in order "'to abolish the common-law presumption
that the repeal of a criminal statute resulted in the abatement of
"all presecutions which had not reached final disposition in the
highest court authorized to review them"'" (Pet. App. 11a (citations
omitted)). And it found that, "(a)lthough the savings clause on its
face applies to the 'repeal of any statute,' it has been held to apply
to statutory amendments as well" (ibid.). Accordingly, the court
concluded that "the determinative question is whether the repealed
prohibition is a 'penalty, forfeiture, or liability' saved from
extinguishment by 1 U.S.C. Section 109" (Pet. App. 12a).
The court determined that new subsections 21(C) and 22 of the FOPA
repealed a "liability" to which petitioner previously was subject
(Pet. App. 13a). The court then noted that "Congress * * * included a
provision in the 1986 Act specifying which sections were to have
retroactive effect and the sections in question here were not included
in that list." The omission of the amendments to Section 922 from the
list of provisions that were meant to have retroactive effect, the
court held, "precludes the findings of an implied congressional intent
of retroactivity" and "returns us to (section) 109, which directs that
the guilt of (petitioner) be measured by 18 U.S.C. Section 922(a)(1),
with its accompanying judicial construction, as it stood prior to the
effective date of the 1986 Act" (Pet. App. 13a). The court added that
"(t)he legislative history of the 1986 Act shows that Congress was
well aware of the judicial interpretations of the term 'engaged in the
business'" and that it enacted new subsections (21)(C) and (22) "in
order to limit the conduct deemed to be criminal" (Pet. App. 13a
(footnote omitted)). Congress, the court concluded, must be presumed
to be familiar with the general saving clause, and if Congress had
intended to have the new subsections affect conduct occurring prior to
the effective date of the amendments, it would have so indicated
(ibid.).
4. Judge Noonan initially concurred in the court of appeals'
judgment; while he did not believe that the FOPA amendments addressed
a "liability" within the meaning of 1 U.S.C. 109, he did find it to be
"the express intent of Congress to make the amendments to (FOPA) * * *
effective only 180 days after the enactment of the law" (Pet. App.
15a). On petition for rehearing, however, Judge Noonan reassessed
that conclusion and determined that, notwithstanding the explicit
provision delaying their effective date, the FOPA amendments should be
applied retroactively to petitioner's case. The retroactive
application of those provisions of the FOPA was necessary, Judge
Noonan concluded, in order to promote Congress's objective of
correcting prior ATF enforcement policies with which Congress
disagreed (id. at 4a-5a).
ARGUMENT
1. The decision of the court of appeals is correct. The general
saving clause states that the repeal of a statute does not "release or
extinguish any * * * liability" under that statute "unless the
repealing Act shall so expressly provide" (1 U.S.C. 109). The
amendments to Section 921 are subject to the general saving clause
because they altered the definition of the activity made criminal by
18 U.S.C. (1982 ed.) 922 and thereby affected the "liability" of
persons subject to the statute. See generally Warden v. Marrero, 417
U.S. 653, 661-664 (1974); Pipefitters v. United States, 407 U.S. 385,
434-435 (1972). Moreover, as the court of appeals noted (Pet. App.
10a), the "repealing Act" does not "expressly provide" that the new
provisions relating to firearms dealers should be given retroactive
effect. On the contrary, Section 110 of the FOPA expressly provides
that the FOPA amendments would take effect only 180 days after their
enactment. While certain provisions of the FOPA were given
retroactive application "to any action, petition, or appellate
proceeding pending on the date of the enactment of this Act," the
amendments to Section 921 were not included among them. This omission
is strong if not conclusive evidence that Congress did not intend the
amendments to Section 921 to apply retroactively and thereby to
override the effect of the general saving provision. See generally
Omni Capital International, Ltd. v. Rudolf Wolff & Co., No. 86-740
(Dec. 8, 1987), slip op. 9.
2. Nor is there any dispute among the courts of appeals concerning
whether the amendments to Section 921 should apply retroactively. The
only other court of appeals to address the issue has also held that
the "firearms dealer" provisions of the FOPA are not to be given
retroactive effect. United States v. Carter, 801 F.2d 78, 83 (2d
Cir.) ("retrospectivity is plainly contrary to Congress's intent"),
cert. denied, 479 U.S. 1012 (1986); see also United States v.
Jackson, 824 F.2d 21, 22-23, & n.2 (D.C. Cir. 1987); United States v.
Pennon, 816 F.2d 527, 529 (10th Cir. 1987). And, contrary to
petitioner's suggestion (Pet. 5-8), the decision in this case does not
conflict with the decision of the Eleventh Circuit in United States v.
Orellanes, 809 F.2d 1526 (1987).
In Orellanes, the defendant was charged with receiving firearms and
ammunition, in violation of 18 U.S.C. (1982 ed.) 922(h)(1). The
charges were based on Orellanes's purchases of firearms and ammunition
between 1982 and 1985, after he had pleaded guilty to two felonies in
Florida state court. The defendant argued (1) that his convictions
abated on the date the FOPA became effective; (2) that because the
Florida court had entered an order withholding adjudication after his
guilty plea, he was not a "convicted" felon within the meaning of 18
U.S.C. (1982 ed.) 922(h)(1); and (3) that this Court's decision in
Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1984), holding
that a guilty plea is a conviction for purposes of Section 922(h)(1),
even if it is not accompanied by an adjudication of guilt, should not
be applied retroactively to his case.
The court of appeals rejected each of those arguments and affirmed
Orellanes's conviction. With respect to the abatement argument, the
court held that the general saving clause, 1 U.S.C. 109, prevented the
prosecution from abating at the time the FOPA became effective,
particularly since the FOPA "contains no provision precluding the
retention of accruing penalties" (809 F.2d at 1529). With respect to
the meaning of the term "convicted," the court held that, even under
Florida law, a plea of guilty constitutes a conviction, even in the
absence of an adjudication by the court (801 F.2d at 1528). And,
finally, with respect to the challenge to the application of
Dickerson, the court held that Dickerson was fully applicable to
petitioner's conduct (809 F.2d at 1528).
Petitioner does not claim that the decision below conflicts with
any of those three holdings by the court in Orellanes. Rather, he
relies on the court's reference to the FOPA in the course of its
discussion of Florida law -- specifically, its notation that Section
101(5) of the FOPA statutorily overruled the decision in Dickerson and
requires a court to look to state law in determining whether a guilty
plea constitutes a conviction (809 F.2d at 1528). But because
Orellanes was considered "convicted" under both state and federal law,
the Eleventh Circuit did not have to decide whether Section 101(5) of
the FOPA would have applied retroactively to relieve the defendant of
liability for the firearms offenses he committed prior to the
effective date of the Act. Thus, the decision in this case does not
conflict with the decision in Orellanes; at most, the decision in
this case is contrary to an unarticulated premise of a portion of the
opinion in Orellanes, a premise that was unnecessary to the court's
judgment. /5/
Moreover, the internal inconsistencies in the Eleventh Circuit's
opinion in Orellanes make it unclear whether that court would have
reached a different result from the court below on the facts of this
case. The court in Orellanes suggested both that the FOPA provided
the governing definition of the term "convicted" and that the
Dickerson case was applicable to Orellanes's conduct; but the term
"convicted" cannot draw its meaning from state and federal law at the
same time. Similarly, the Orellanes court suggested that both Section
101(5) of the FOPA and the general saving clause, 1 U.S.C. 109,
controlled the case; but a statute cannot be both retroactive and
nonretroactive at the same time. /6/ These internal inconsistencies
indicate that the Eleventh Circuit's discussion of Section 101(5) of
the FOPA cannot properly be used as the basis for an asserted conflict
among the circuits.
Finally, even if some of the language in Orellanes can be read as
implying that Section 101(5) of the FOPA is to be applied
retroactively, review by this Court is unwarranted because of the
diminishing importance of the issue. The question whether the FOPA
amendments should be given retroactive application has arisen in only
a small number of cases under the Gun Control Act and, in light of the
passage of time since the FOPA amendments were enacted in 1986, it is
not likely to arise in many more. As we have shown, the Ninth
Circuit's application of the general saving clause was clearly
correct, and only the rather cryptic language from a portion of the
Orellanes case stands on the other side. Because that language has
not caused confusion among other courts -- and did not even result in
an incorrect outcome in the Orellanes case itself -- this Court's
intervention is not warranted.
3. Petitioner next contends (Pet. 8-17) that this Court's decisions
do not establish a clear "analytical process" for the federal courts
to follow in applying 1 U.S.C. 109 and that the lower courts need
guidance concerning the effect that the general saving provision has
on an amending statute such as the FOPA. This contention is without
merit.
The principles governing the abatement of criminal prosecutions
are, in fact, relatively clear. The common law rule provided that a
prosecution under a statute that is repealed or amended while the case
is pending on direct review must abate in the "absence of a
demonstration of contrary congressional intent or a general saving
statute." Pipefitters v. United States, 407 U.S. 385, 432 (1972). See
also Warden v. Marrero, 417 U.S. 653, 660 (1974); United States v.
Reisinger, 128 U.S. 398, 401 (1888). The general saving clause is
such a statute; it was enacted to abolish the common law presumption
that the repeal of a criminal statute resulted in the abatement of all
prosecutions that had not yet become final. Warden v. Marrero, 417
U.S. at 660-661 & n.11; Pipefitters v. United States, 407 U.S. at
433. The general saving clause does not create an inflexible rule
that no repealing or amending statute can be given retroactive effect;
instead, it creates a presumption in favor of nonretroactivity, which
can be overridden if Congress has indicated a desire to make a
particular statute -- or certain provisions of a statute --
retroactive. See Hertz v. Woodman, 218 U.S. 205 (1910); Great
Northern Ry. v. United States, 208 U.S. 452, 464-466 (1908).
Petitioner suggests that Hamm v. City of Rock Hill, 379 U.S. 306
(1964), is inconsistent with this analysis. In Hamm, the Court held
that state prosecutions of persons who had participated in "sit-in"
demonstrations at retail store lunch counters had to abate because of
the subsequent enactment of the Civil Rights Act of 1964. In the
course of its discussion, the Court stated (379 U.S. at 314) that, if
the "sit-in" convictions had been federal convictions, they would not
have been saved from abatement by the general saving clause. The
Court held that the effect of the Civil Rights Act went far beyond
merely repealing prior contrary laws -- instead, the Act "substitutes
a right for a crime" (ibid.). That "drastic * * * change" in the law,
the Court stated, "is well beyond the narrow language of amendment and
repeal." Therefore, the Court concluded, the effect of the Civil
Rights Act was to go beyond the "mere technical abatement" that the
saving clause was meant to avoid (ibid.).
Unlike the Civil Rights Act of 1964, the FOPA amendments were not
intended to "substitute() a right for a crime"; they merely removed
certain categories of conduct from the reach of the criminal sanction
-- the same effect that any appeal of a criminal statute would have.
The Court's analysis in Hamm is therefore inapplicable here.
Moreover, the Court in Hamm was applying a statute that did not
contain a powerful guide to statutory construction of the kind that
was available to the court of appeals in this case: Section 110 of
the FOPA, which indicates that certain provisions of the FOPA would be
applied retroactively to cases on appeal at the time of enactment, but
which did not include the provisions at issue in this case.
Later decisions by this Court have made clear that the Hamm case
was not intended to mark a departure from the Court's traditional
construction of the general saving clause and its relationship to
statutes that repeal or amend criminal sanctions. In Pipefitters v.
United States, supra, for example, the Court addressed the question
whether a prosecution for illegal campaign contributions under 18
U.S.C. (1970 ed.) 610 was affected when the statute was amended by
Section 205 of the Federal Election Campaign Act of 1971, Pub. L. No.
92-225, 86 Stat. 10. The Court found no evidence that Congress
intended the 1971 statute to preserve prosecutions under the former
version of Section 610; nonetheless, the Court held that the general
saving clause barred the abatement of any prosecutions under the prior
version of Section 610. 407 U.S. at 432-433. The Court distinguished
the Hamm case by pointing out that, although Section 205 of the
Federal Election Campaign Act of 1971 may have "ma(d)e lawful what was
previously unlawful," it did not "(substitute) a right for a crime."
407 U.S. at 434. Therefore, the Court held that, even if the former
Section 610 was implicitly repealed by the 1971 statute, the
defendants remained punishable under the prior version of Section 610.
Two years later, in Warden v. Marrero, supra, the Court again
applied the general saving clause to preserve a penalty that had been
repealed by a statute that was enacted after the defendant's
conviction. In that case, the Court held that the general saving
clause preserved the no-parole provision of the pre-1970 narcotics
laws, 26 U.S.C. (1964 ed.) 7237(d), as applied to the defendant, even
though that provision was repealed by the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236.
Because there was no indication in the latter statute that the repeal
of the no-parole provision was meant to be applied retroactively, and
because the Court concluded that the no-parole provision of the former
statute was a "panalty" within the meaning of 1 U.S.C. 109, the Court
held that the defendant was not entitled to relief based on the later
statute. /7/
The decisions in Pipefitters and Warden v. Marrero control this
case. Like the amending statute at issue in Pipefitters, the FOPA
amendments merely "ma(d)e lawful what was previously unlawful"; they
did not substitute "a right for a crime." 407 U.S. at 434. Moreover,
as in both Pipefitters and Warden v. Marrero, there is nothing in the
FOPA to indicate that Congress intended the amendments to Section 921
to apply retroactively; on the contrary, as we have noted, there is a
strong textual basis for the inference that those amendments were not
intended to have retroactive application. Petitioner committed an act
which, at the time, was clearly criminal. Indeed, even though he had
been warned by an ATF agent that his conduct was criminal, he
persisted in it. He should not receive a windfall from Congress's
subsequent decision to decriminalize certain kinds of firearms
transactions.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
WILLIAM F. WELD
Assistant Attorney General
THOMAS E. BOOTH
Attorney
FEBRUARY 1988
/1/ That instruction was consistent with the construction of
Section 922 uniformly embraced by the courts of appeals. See, e.g.,
United States v. Carter, 801 F.2d 78, 82 (2d Cir.), cert. denied, 479
U.S. 1012 (1986); United States v. Burgos, 720 F.2d 1520, 1527 n.8
(11th Cir. 1983); United States v. Wilmoth, 636 F.2d 123, 125 (5th
Cir. 1981). See also United States v. Powell, 513 F.2d 1249, 1250
(8th Cir.), cert. denied, 423 U.S. 853 (1975).
/2/ Section 921(a)(21)(C) (18 U.S.C. (Supp. IV)) provides that the
term "engaged in the business" means:
(A)s applied to a dealer in firearms, as defined in section
921(a)(11)(A), a person who devotes time, attention, and labor
to dealing in firearms as a regular course of trade or business
with the principal objective of livelihood and profit through
the repetitive purchase and resale of firearms, but such term
shall not include a person who makes occasional sales,
exchanges, or purchases of firearms for the enhancement of a
personal collection or for a hobby, or who sells all or part of
his personal collection of firearms.
/3/ Section 921(a)(22) (18 U.S.C. (Supp. IV)) provides, in
pertinent part:
The term "with the principal objective of livelihood and
profit" means that the intent underlying the sale or disposition
of firearms is predominantly one of obtaining livelihood and
pecuniary gain, as opposed to other intents, such as improving
or liquidating a personal firearms collection. * * *
/4/ Specifically, Section 110 provides, in pertinent part:
(a) IN GENERAL. -- The amendments made by this Act shall
become effective one hundred and eighty days after the date of
the enactment of this Act. * * *
(b) PENDING ACTIONS, PETITIONS, AND APPELLATE PROCEEDINGS.
-- The amendments made by sections 103(6)(B), 105, and 107 of
this Act (which affect 18 U.S.C. 923(f), 925, and 926A) shall be
applicable to any action, petition, or appellate proceeding
pending on the date of the enactment of this Act.
(c) MACHINEGUN PROHIBITION. -- Section 102(9) shall take
effect on the date of the enactment of this Act.
/5/ We note, in addition, that Orellanes dealt with a different
section of the Gun Control Act. Orellanes involved the "prior
conviction" provision, 18 U.S.C. (1982 ed.) 922(h)(1), while this case
involves the "firearms dealer" provision, 18 U.S.C. (1982 ed.) 922(a).
/6/ The confusion in the opinion of the Orellanes court may have
resulted from that court's focus on the term "penalty" in the general
saving clause. While recognizing that the general saving clause
preserves "any penalty" established in a prior statute, the court may
have overlooked that the saving clause also preserves any "liability"
established in a prior statute, absent an express provision to the
contrary in the repealing or amending statute. If the general saving
clause is applicable to the FOPA amendments, as the Orellanes court
held it was, the result is the preservation of a liability -- in this
case, the preservation of petitioner's liability for trading in
firearms without a license, as the term was defined prior to the FOPA
amendments.
/7/ Although the decision in Warden v. Marrero, supra, drew a
dissent, the analysis adopted by the dissenters supports the position
taken by the Ninth Circuit in this case. The dissenters accepted the
basic proposition that "apart from exceptional circumstances (citing
Hamm v. Rock Hill, supra), one who violates the criminal law should
not escape sanction if, subsequent to the commission of his criminal
act, the law happens to be repealed." Warden v. Marrero, 417 U.S. at
665 (Blackmun, J., dissenting).